Do special circumstances exist that warrant notification to any other persons not identified above?
No
My comments under section 95A are equally applicable here and I do not consider that any special circumstances apply that warrant notification to persons not listed above should the commissioner find that public notification is not required.
Conclusion on limited notification
Having evaluated the application against the provisions of section 95B, my conclusion is that the application must be limited notified to the affected persons listed above.
Recovery Plans and Regeneration Plans
Section 60(2) of the Greater Christchurch Regeneration Act 2016 requires that decisions and recommendation on resource consent applications are not inconsistent with Recovery Plans and Regeneration Plans.
There are no Recovery Plans or Regeneration Plans relevant to this application.
RECOMMENDATION
That, for the reasons outlined above, the application be publicly notified in accordance with section 95A of the Resource Management Act 1991.
Reported and recommended by: Shona Jowett, Planner Date: 25/10/2019 Reviewed by: Andy Christofferson, Planning Team Leader Date: 25/10/19
Decision
That the above recommendation be accepted for the reasons outlined in the report.
x
I have viewed the application and plans.x
I have read the report and accept the conclusions and recommendation.Decision maker notes Determination
1. I have been asked to make a decision on a report and recommendation (the notification report) prepared by the CCC to determine whether this application must be processed on a non-notified, limited notified, or publicly notified basis, pursuant to Sections 95A and 95B of the Resource Management Act.
2. Having considered all the relevant information before me, my determination is that the application must be publicly notified under section 95A.
Background and process undertaken
3. On 25 October, I was forwarded a link to the section 95 report described in paragraph 1 above. The report was prepared and assembled by Ms Shona Jowett, CCC Planner, and reviewed by Mr Andy Christofferson, Planning Team Leader. The report drew on other reports by Council officers including from Council’s Senior Urban Designer, Mr David Hattam.
4. I was also provided a link to the resource consent application prepared by Novo Group Ltd under the direction of Mr Jeremy Phillips, Director + Senior Planner. That application assembled and drew on several reports from a variety of professional disciplines but did not include any specific technical report on urban design matters. I return to this point later in this addendum.
5. Having evaluated the application against the provisions of section 95A of the RMA, Ms Jowett’s conclusion in the notification report is that that the application must be publicly notified (the primary recommendation). The essence of this recommendation was her conclusion that:
“the proposal would generate more than a minor adverse effect on the environment by its impact on the special character of Lyttelton as described in the Lyttelton design guide. Other design matters (visual impact and CPTED) are considered to have no more than a minor adverse effect. Parking and transport effects are also considered to be no more than minor.”
6. The notification report also canvased the need for limited notification. In this respect, Ms Jowett commented and recommended accordingly:
In the event that the decision maker forms a different view and finds that public notification is not required, I have provided an assessment of effects on persons to determine whether the proposal should be limited notified.
Having evaluated the application against the provisions of section 95B, my conclusion is that the application must be limited notified to the affected persons listed above.
7. On 29thOctober, being two working days after receiving the notification report, I directed that the CCC reporting planner ascertain from the applicant’s agent whether the applicant wished to allocate time to view a copy of the (then) draft s95 notification report and respond with any comments and/or any alterations to the proposal to address some of the urban design concerns unpinning the primary recommendation. This was motivated by a reoccurring comment in the application documentation that the applicant would be prepared to make changes to the proposal through the rest of the resource consent process to address any urban design issues.
8. The applicant responded by saying:
Based on our initial review we want to signal that we do wish to provide a response, but we will not be in a position to provide that response by COB Wednesday (tomorrow), noting that there are a number of (reasonably significant) issues that warrant a considered response (and my unavailability).
9. The response also stated that the applicant, if allowed, would provide a full response but that
… in the interests of time, we thought it might be useful to signal our concern regarding the recommendation for public notification on urban design/visual impact grounds.
10. The applicant indicated that it required a week to respond and so I set the following timetable:
a. Applicant to respond to draft s95 report and addendum by no later than 8 November.
b. CCC planner to finalise s95 report and recommendation by no later than 15 November.
11. The applicant also agreed to the processing the application to be suspended pending the delivery of the timetable items (effectively a s37 RMA extension to timeframes).
12. On Friday 8th November I received an 11-page response by the applicant. That response addressed the conclusions in the s95 report regarding the public notification tests, special circumstances, and affected persons. It set out those points of agreement/disagreement, before elaborating on the specific points that they disagreed with. It concluded that there is no statutory or substantive reasons for public notification of the application based on urban design matters. It accepted that parking-related effects, visual dominance effects and local character effects are reason for limited notification under section 95B.
13. On Thursday 14th November, I received from Ms Jowett the following:
a. Her addendum to the s95 report and the updated s95 report.
b. Her response to Jeremy Phillips’ response to the draft s95 report.
14. Ms Jowett’s addendum was based on some errors in the s95 recommendation report activity status section, which she considered necessary to raise with all parties. These errors concerned some overlap between each of Rules 15.6.1.3 RD1 and RD2 with Rule 15.6.1.4 D1. Specifically, she considered that Rules 15.6.1.3 RD1 and 15.6.1.3 RD2 should not be included in her activity table assessment because the activities in those rules are otherwise specified within the more specific activity set out in rule 15.6.1.4 D1. I return to this matter in my discussion below. There were no other changes arising to the draft s95 report and Ms Jowett’s primary and secondary replacements remained intact.
15. The second document provided by Ms Jowett was an in-depth response to the applicant’s response to the draft s95 report. It canvased several aspects of Mr Phillips’ memo and concluded that:
Section 95A, in my opinion, suggests that when bundling of activities is required public notification must only be precluded where all activities are subject to a non-notification clause (i.e. should any one activity not contain such a clause then all bundled activities subject to the resource consent must not be precluded from public notification).
For me, these sections reinforce that the correct approach is that public notification is not precluded for the present application and must be considered for the application overall owing to its discretionary activity status and the lack of a non-notification clause for all rules….
16. This leaves me with a contested position over whether to adopt the primary or secondary recommendation in the s95 notification report.
Discussion
17. In resolving the above contested position, I firstly (and importantly) note that in this instance, urban design and local character effects are the sole matter underpinning Council’s recommendation for public notification; and that position is on the basis of technical advice from the Council’s Senior Urban Designer that the proposal ‘would generate a more than minor adverse effect on the character of Lyttelton which would be perceived by persons in the wider environment of Lyttelton’. This does not appear to have been formally accepted or disputed by Mr Phillips who did not provide any assessment against the urban design guide. On all other matters, both Ms Jowett and Mr Phillips are in agreement – the effects are either minor (in the case of parking related effects, visual dominance effects and local character effects) or less than minor (for all other effects).
18. In other words, the determining factor is urban design effects. In that respect, there are two separate but related matters to be determined - one procedural and one substantive; namely:
a. Is there a statutory basis in the Plan rule framework for a finding that public notification is precluded for the present application?
b. Are the urban design effects of such a magnitude to warrant public notification?
19. For the reasons I express below, the answer to a. is “no” and the answer to b. – based on the information before me – is “yes.”
Statutory basis for public notification
20. On the first matter, Mr Phillips and Ms Jowett’s views are very contrastable. They revolve around whether the rules precluding public notification apply in this instance and whether they can be relied on or not.
21. Ms Jowett’s opinion is that there is some overlap between each of Rules 15.6.1.3 RD1 and RD2 with Rule 15.6.1.4 D1. In her opinion, it is notable that each of Rules 15.6.1.3 RD1 and RD2 include the words unless otherwise specified. She says that this means that these rules do not apply where the activity is specified by another applicable rule. She notes that is the case with Rule 15.6.1.4 D1, and accordingly, RD1 and RD2 under 15.6.1.3 do not apply. In support of that position, Ms Jowett says that Rule D1 is more specific as it relates to Lyttelton and Akaroa as discrete from the Commercial Banks Peninsula zone more generally, which is the subject of Rule 15.6.1.3 RD1 and RD2. Rule 15.6.1.4 D1 is also more specific as it relates to activities which involve the erection of a building as discrete from activities generally that do not require such and could for example take place within an existing building, as is the subject of Rule 15.6.1.3 RD2.
22. Ms Jowett then poses the question of whether it is appropriate to unbundle the activities to enable some flexibility in the application of the various notification clauses. In this respect, my understanding from Ms Jowett’s report is:
a. when bundling of activities is required, public notification must only be precluded where all activities are subject to a non-notification clause (i.e. should any one activity not contain such a clause then all bundled activities subject to the resource consent must not be precluded from public notification); and
b. conversely, public notification must be required where any one of the bundled activities contains a notification requirement, rather than artificially separating aspects out (excepting where unbundling can apply).
23. In this case, Ms Jowett’s report said that the activity status is discretionary and there is no associated non-notification clause owing to a lack of outdoor living space (an activity-specific standard for residential activity P17). In this respect, there is no preclusion for notification under such a scenario. She says that effects on character are the key concern leading to her public notification recommendation. On that basis she considers the effects of the outdoor living space non-compliance could overlap with the effects on character, for example, balconies could add detail and visual interest to facades, and reduce the extent of adverse character effects. It follows that she does not consider that these aspects should be unbundled.
24. Mr Phillips’ view is that Rule 15.6.1.4 D1 applies to this activity in respect of urban design and provides direction or scope in respect of notification. He added (in summary):
a. Rule 15.6.1.3 RD3, which applies where proposals comply with relevant built form and activity standards and provides for consideration of the urban design assessment matters in Rule 15.13.1. and the Lyttelton Design Guidelines in Appendix 15.15.6, directs that applications arising
from this rule shall not be limited or publicly notified. This supports his view that the matters in Rule 15.13.1 and Appendix 15.15.6 are substantive considerations under s104(1)(b).
b. Rule 15.6.1.4 D1 also refers to the urban design assessment matters and Design Guidelines and it applies to this application given the breach of built form standards (for height, site coverage and street scene) and activity standards (storage and outdoor living space). In terms of notification, he notes that the rule states “Advice note: 1. Refer to relevant built form standard for provisions regarding notification”. For this application the relevant built form standards preclude public notification. Whilst he acknowledges that the applicable activity standards (for storage space and outdoor living space) do not preclude notification, he says that these matters are not at issue with this application.
25. On the above basis, Mr Phillips’ opinion is that whilst notification is not precluded under this rule, he considers the framework for the rule also supports his view that the matters in Rule 15.13.1 and Appendix 15.15.6 are substantive considerations under s104(1)(b).
26. Ultimately, this impasse is a legal issue and neither Mr Phillips nor Ms Jowett’s view constitute legal advice. I have not sought legal advice because of the time constraints imposed by the applicant to have a s95 decision issued and the processing of the application resumed as soon as possible. My inclination is that Ms Jowett’s position may be the correct one due to her arguments about the inability to unbundle and cherry pick in the application of the notification rules. On this point, I accept that the 2017 amendments to the RMA have made it clearer that notification is precluded only if each activity is subject to a rule that precludes notification. Significantly, this does contrast with the former wording under s95A(3)(a) which prevented public notification if ‘a rule … precludes public notification of the application…’.
27. I note that these sections of the Act were not covered in Mr Phillip’s response so it is not clear to me whether the wording of the Act has informed his response. Furthermore, it appears to me that Mr Phillips’ appraisal of the applicable rules and the relevant notification criteria (as summarised in para 24 a and b above) is incorrect in both respects. That is, Rule RD3 under 15.6.1.3 does not apply to this activity, and the activity standards not met under Rule 15.6.1.1 P17 are indeed at issue for this proposal.
28. Having said that, I acknowledge Mr Phillips’ argument that it is evident that throughout the Plan’s Commercial zones (including the Commercial Banks Peninsula Zone), urban design matters are universally treated as substantive issues of merit, rather than adverse effects that may require public or limited notification. In this respect, I do note that on a first reading of the Commercial Banks Peninsula Zone urban design rule (15.6.1.3 RD3), which applies to Lyttelton or Akaroa, it seems reasonably clear that any application arising from this rule shall not be limited or publicly notified. As noted above, however, this is not the relevant rule for this proposal.
29. Furthermore, and acknowledging Ms Jowett’s point that the RMA requires an activity (in its entirety) to be covered by non-notification clauses for those limitations to apply, if the points above were to be treated at face value this means public notification is only ‘opened up’ in this instance by the breaches of earthworks, transport rules and activity-specific standards under Rule 15.6.1.1 P17 not met.
30. Based on the above, the view of Ms Jowett is compelling in that the Plan does not preclude public notification for this application. Likewise, the Plan provisions do not require either public notification or limited notification and therefore the test of s95 applies. It is therefore the second question I raised at the outset of this discussion as to whether the nature of the effects less than minor, minor, or more than minor that is the determinant and which I now focus upon.
Do the effects justify notification?
31. As noted above, my starting point for this part of the assessment is to note Ms Jowett’s view that (my emphasis):
I consider the proposal would generate more than a minor adverse effect on the environment by its impact on the special character of Lyttelton as described in the Lyttelton design guide. Other design matters (visual impact and CPTED) are considered to have no more than a minor adverse effect. Parking and transport effects are also considered to be no more than minor.
32. Ms Jowett has relied upon Mr Hattam’s assessment in reaching that conclusion.
33. Mr Hattam makes clear in his memo that his assessment is framed by the following:
a. the matters of discretion for urban design at Section 15.3.1 of the District Plan;
b. the design guidelines for the Lyttelton Commercial Banks Peninsula Zone at Appendix 15.15.6 of the District Plan;
c. the matters of discretion for outdoor living space and maximum building height at Sections 15.3.2 and 15.3.3 (respectively) of the District Plan; and
d. the rating scale adopted by the New Zealand Institute of Landscape Architects for the purposes of carrying out visual effect assessments.
34. In this respect, Mr Hattam’s assessment is based on objective criteria specifically included in the Plan to assess proposals such as this. Conversely, the urban design assessment in the application documentation was limited solely to consideration of some assessment criteria in the assessment of environmental effects, and in the architectural design statement provided by Warren & Mahoney, which briefly discussed three of the design principles in the design guidelines at Appendix 15.15.6. Significantly, there was no comprehensive urban design assessment attached to the application, nor in the applicant’s subsequent response to the Council’s requests for further information, despite the Council’s invitation to the applicant to do so.
35. On that latter point, I note that Mr Hattam’s initial assessment of the proposal led to his advising Ms Jowett of specific concerns he had and possible solutions the applicant could adopt to address those.
These concerns and recommendations were sent to the applicant on 15 July 2019 and were responded to in the applicant’s formal response to the Council’s further information request. Of particular note, Ms Jowett made clear in the 15 July communication that:
Council's Urban Designer, David Hattam, has assessed the proposal and has raised a number of concerns (set out below), including providing some solutions that could mitigate these concerns. Excepting those matters raised in the s92 letter where a response is required, it is not mandatory that you make any of these changes. Rather, these summary comments are being provided as a courtesy to give you the opportunity to consider making any revisions. Overall, I will need to form a view on the application as a whole once I have all the required information and having regard to the specialist advice received.
Regardless of where I get to with any recommendation, a decision maker will still need to consider the specialist's advice, which will include that summarised below. Given there is no urban design assessment supporting the application you may wish to make some changes, or obtain some urban design advice, as without it a decision maker will only have Council's specialist urban design advice to rely on - this may assist in informing how you proceed (see point 28 beneath the s92 request in this respect too, which notes that the applicant may want to provide an urban design assessment of the proposal to support the application) 36. While the applicant’s response included some offers to codify a certification process for the building
Regardless of where I get to with any recommendation, a decision maker will still need to consider the specialist's advice, which will include that summarised below. Given there is no urban design assessment supporting the application you may wish to make some changes, or obtain some urban design advice, as without it a decision maker will only have Council's specialist urban design advice to rely on - this may assist in informing how you proceed (see point 28 beneath the s92 request in this respect too, which notes that the applicant may want to provide an urban design assessment of the proposal to support the application) 36. While the applicant’s response included some offers to codify a certification process for the building